Opinion
14-P-1167
05-27-2015
ADOPTION OF PAULINA (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from decrees issued by a judge of the Juvenile Court finding her children, Paulina and Stephen, in need of care and protection and terminating her parental rights. See G. L. c. 210, § 3. We affirm.
The father has not appealed the termination of his parental rights.
The trial judge issued a lengthy and detailed memorandum, making 191 findings of fact based on the evidence presented at trial. We summarize the relevant findings and conclusions. The mother met the father in 2004. They have two biological children together, Paulina, born in 2006, and Stephen, born in 2008. After years of repeated break-ups, separations, and domestic violence, the father left the family in 2010.
Throughout the years the parents were together, there were numerous domestic violence incidents, which repeatedly put the children's safety at risk. The incidents began in 2006, when the mother was eight months pregnant with Paulina, and continued after Stephen was born. The incidents included a physical altercation between the parents that ended with the father punching the mother while she was holding Stephen. Some incidents occurred in front of the children. The mother admitted and the judge found that the domestic violence traumatized the children. At trial, the mother's expert psychologist testified that observing domestic violence is harmful to children, can prevent them from developing in a healthy manner, and can cause them to display aggression and difficulty with peers. These are symptoms that both Paulina and Stephen display.
The mother has not solely been the victim of abuse; she has also been abusive toward her children. The mother frequently verbally abused the children. She was also seen slapping Stephen in the face. The two children also displayed symptoms of sexual abuse, or at a minimum, exposure to sexual situations.
In April of 2010, when Paulina was four years old, she was admitted to the hospital after ingesting adult pills. While at the hospital, the mother was observed yelling at Paulina that it was all her fault that they were there and that she was very mad at her.
The judge also made several findings on the chronic instability that plagued the children's lives, including housing instability, financial instability, emotional instability, and abandonment. The prospective adoptive mother, Susan Smith (a pseudonym), was a friend of the mother's through much of this period, and attempted to help the family with rental payments, caring for the children, paying for necessities such as diapers and formula, assisting the mother in applications for public assistance, and providing other forms of support.
The judge found that "[d]ue to [the children's] traumatic past with Mother and Father, [Paulina] and [Stephen] have special needs." The judge further found that the children require special attention and services which the parents failed to provide. Moreover, the mother has not adequately cared for the children and has generally neglected them, causing them to fall behind in medical care and education. The mother and father have also engaged only sporadically in different counseling services, none of which have been successful -- the mother was uncooperative, and the father attended only a few sessions.
There were numerous reports filed against the mother pursuant to G. L. c. 119, § 51A. In August, 2012, the Department of Children and Families (department) was unable to find the mother and the children. Because of this, the department sought and obtained emergency custody of the children. After the children were placed in foster care, the mother asked Smith and her family on several occasions if the children could live with them. When the children's foster parents determined that they could no longer care for the children, the mother again asked the Smiths to take the children and they agreed. The children were placed with the Smiths in September, 2012.
The children's circumstances have improved since that move. The children's therapist, a social worker, testified that Stephen has been diagnosed with adjustment disorder with anxiety and Paulina has reactive attachment disorder. They both exhibited behavioral problems, including acting out sexually. The Smiths have instituted a structural behavioral plan with Stephen. Both children now attend their own therapy consistently and attend family therapy sessions with the Smiths. Given the parents' tumultuous relationship, colored by chronic instability and violence, and their past unwillingness to comply with service plans, the judge found that neither the mother nor the father possessed the commitment or stability to provide for the children's needs.
With respect to the mother, the judge found that she could not provide a stable life for the children based on her unwillingness to take medication to treat her numerous mental health conditions (including posttraumatic stress disorder, bipolar disorder, depression, and pervasive development disorder) and her inability to maintain a stable home (she was evicted from two apartments and terminated from three shelters during the pendency of this case). With respect to the father, the judge noted that he was abusive and abandoned the family on several occasions and that he has failed to keep up with services instituted for his benefit, such as therapy.
Discussion. The department's plan is adoption of the children by the Smiths. The judge found that the Smiths understand the children's needs and are able to provide for them. Since being placed with the Smiths, the children's behavior at home has shown tremendous improvement.
"In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59-60 (2011). "When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused his discretion or committed a clear error of law." Adoption of Elena, 446 Mass. 24, 30 (2006). "[I]n care and protection proceedings, subsidiary evidentiary findings need only be proved by a fair preponderance of the evidence. Taken together, these facts must then prove parental unfitness, since it is the 'critical inquiry,' by clear and convincing evidence." Care & Protection of Laura, 414 Mass. 788, 793 (1993). The judge's findings must be left undisturbed absent a showing that they are clearly erroneous. Custody of Eleanor, 414 Mass. 795, 799 (1993). We review the trial judge's findings with deference, acknowledging the value of her experience and judgment. See Adoption of Elena, supra at 31.
On appeal, the mother contends that the judge abused her discretion by "prematurely entering termination of parental rights decrees" and erred in allowing the children's therapist to testify.
1. Mother's unfitness. The mother argues that the judge abused her discretion by terminating the mother's rights to the children, emphasizing that she has made earnest attempts to improve her shortcomings, that her unfitness is reasonably likely to be temporary, and that the strong parent-children connection should have prevented the terminations. We disagree. The judge may determine whether there is a sufficient likelihood that the parent's unfitness is only temporary. See Adoption of Ilona, 459 Mass. at 59-60. In determining that the mother and the father are currently unfit to care for the children and that their unfitness will persist for the foreseeable future, the judge considered many relevant factors, including "the parents' character and temperament, their ability to maintain a stable home life, to follow service plans, to attend necessary counseling and programs to understand the risk and impact of domestic violence, and the consistency in, and quality of, visitation." "Even where a parent has participated in programs and services . . ., we rely on the trial judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary." Ibid. The welfare of the child is the most important consideration in determining whether parents are unfit. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 589 (1981).
The judge's findings here were specific and detailed, demonstrating that close attention was given to the evidence. Moreover, the judge's findings "prove current parental unfitness clearly and convincingly." Adoption of Eleanor, 414 Mass. at 799. In her conclusions of law, the judge stated that "[i]n this case, the children survived a chronically unstable home life from the time of their birth until the time of their removal from the parents," and she emphasized that this instability was not a result of poverty but rather "a direct result of the parents' inability to maintain housing no matter what supports they received." The judge also cited extensive evidence regarding the violence in the parents' relationship as well as abuse towards the children and the detrimental effect it had on them. See Custody of Vaughn, 422 Mass. 590, 599 (1996) (acknowledging profound impact witnessing or being victim of domestic violence can have on children). A judge may properly consider "past conduct to predict future ability and performance." Custody of Michel, 28 Mass. App. Ct. 260, 270 (1990). "Violence within a family is highly relevant to a judge's determination of parental unfitness and the best interests of the children." Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). The judge concluded that "the parents' deficiencies have directly, and indirectly, affected the children, to the point where the parents' actions qualify as both abusive and neglectful." The judge considered these long-term deficiencies and concluded:
There was evidence presented that the family relocated numerous times, moving from the maternal grandmother's house (which Paulina described as "disgusting"), to two apartments, both of which they were evicted from on the father's abandonment (one which Susan Smith financed for several months), to Florida, back to the maternal grandmother's home, then to various friends' homes, to a hotel, to a Department of Transitional Assistance shelter (the shelter was a hotel room with only one bed) from which the family was terminated because the mother broke shelter rules by leaving the children alone and yelling at staff members, to another shelter hotel from which they were also terminated (during their stay, drug paraphernalia, including pain medications and syringes were found in the room, other residents complained about the mother being verbally abusive to them, and the children were left alone in the room).
"[It] is clear . . . that the parents would not be in a position to adequately address the children's needs should they be returned home. History is the best predictor of future behavior; the Court finds that neither Mother nor Father would follow through with the changes and services that would be required should the children be forced to return home in this case."The judge did not abuse her discretion.
After finding that the parents were currently unfit and will likely continue to be unfit for the foreseeable future, the judge found that it was in the best interests of the children to terminate parental rights. In making this determination, the judge considered the factors contained in G. L. c. 210, § 3(c), including but not limited to, abandonment; abuse or neglect aimed at the children or witnessed by them and receipt and utilization of services intended to correct the circumstances; refusal or inability by the parents to utilize services offered to them to remediate parenting deficiencies; failure to provide appropriate care for the children; and the existence of a strong, positive bond with the substitute caretaker, the likely psychological harm to the children that would result upon removal from that caretaker, and the parents' inability to meet the children's special needs upon that removal.
The mother argues that it was an abuse of discretion to terminate her rights because of the strong bond she has with her children. We disagree. The mother cites Adoption of Carlos, 413 Mass. 339, 350 (1992), where the court noted that "[t]he natural bond between parent and child should not be permanently severed unless the child's present or future welfare demands it." While the bond with the mother can be considered, the judge's findings, taken together, demonstrate clear and convincing evidence of the mother's unfitness and that termination is in the best interests of the children. The judge recognized the bond the children had with the mother by providing for postadoption visitation even in the face of her unfitness.
2. Therapist's testimony. The mother also argues that it was reversible error for the judge to allow the children's therapist to offer an opinion about the children's diagnoses after the judge declined to qualify the therapist as an expert. We disagree.
First, it was not error for the judge to allow the therapist to testify about the diagnoses. The therapist is a licensed clinical social worker (LCSW) and has a master's degree in social work. She began working with the children in July of 2010. As the children's therapist, she could testify as to her treatment of them, including what occurred during therapy and the diagnoses that were determined. It was proper for the judge to allow her to testify about the children's symptoms and behaviors that she understood to be related to their diagnoses. See Adoption of Kirk, 35 Mass. App. Ct. 533, 540 (1993) (no error when judge allowed social worker to provide opinion on diagnosis). "[A] licensed social worker is not sterilized from casting observations about a family in the vocabulary of psychology." Custody of Michel, 28 Mass. App. Ct. at 265. "The language of psychology is hardly a foreign tongue to licensed social workers and is one in which they may be expected to express themselves." Id. at 266. Even though the social worker here was not qualified as an expert witness, it was permissible for her to testify to her treatment of the children. "[T]he judge's reliance on testimony of a . . . social worker who had been involved with the family in the very recent past . . . was not clearly erroneous." Petition of Dept. of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 671 (1986). Furthermore, the testimony was introduced in a limited manner, as the judge explicitly stated, "I don't find that she qualifies as an expert." "As this was a bench trial, we presume that the judge instructed [herself] correctly on the law," minimizing any risk that the testimony was considered improperly. Commonwealth v. Jackson, 80 Mass. App. Ct. 528, 530 (2011).
Second, even if it were error to allow this testimony, that error would be harmless, because there was a substantial amount of other evidence regarding the serious mental health conditions of the children. The judge based two out of 191 findings on the therapist's testimony about the children's diagnoses, and these findings were consistent with the judge's other findings. "Thus, any error could not prejudice the mother and would not provide a basis for reversal." Adoption of Kimberly, 414 Mass. 526, 538 (1993). The testimony did not affect the outcome of the case.
Decrees affirmed.
By the Court (Cypher, Trainor & Katzmann, JJ.),
The panelist are listed in order of seniority.
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Clerk Entered: May 27, 2015.